Middle position on Medicare appeals

Posted Tue, July 24th, 2012 11:38 am by Lyle Denniston

The Supreme Court on Monday chose a Harvard law professor, John F. Manning, to take part in a granted case on hospitals’ right to challenge rulings on the amount of reimbursement they are to be paid for treating elderly or disabled patients under the federal Medicare program. Manning was assigned to brief and argue a position that lies between the arguments that will be made by the federal government and by 18 hospitals. The order naming him as an amicus in Sebelius v. Auburn Regional Medical Center, et al. (docket 11-1231) is here. The case has not yet been set for argument, but is likely to be heard in December or January.

The Court on June 25 agreed to hear the federal government’s petition on whether hospitals in the Medicare program are entitled to get additional time to pursue an administrative appeal after a financial firm acting on the government’s behalf had set a reimbursement figure. The federal Medicaid law sets a 180-day deadline for filing such an appeal with the Provider Reimbursement Review Board, an entity within the Department of Health & Human Services, which runs Medicare. The D.C. Circuit Court ruled, however, that the 180 days could be extended when a hospital can show that the government financial contractor has not acted fairly — that is, the hospital can seek a form of “equitable tolling” of the deadline.

As the case was developing in the briefing prior to the Supreme Court’s grant of review, the government was arguing that allowing such extensions would put a significant financial and administrative burden on HHS as it processes reimbursement claims. In response, the hospitals said that the government had not shown that it could not write new regulations to limit such extensions. That prompted the government to advise the Court that it “is not arguing that the 180-day appeal deadline is jurisdictional or admits of no exceptions.” The HHS Secretary, the reply brief said, can grant exceptions in a limited number of cases where “good cause” is shown.

Thus, upon granting the petition, the Court was faced with the government arguing that only HHS could extend the deadline, and the hospitals arguing that courts can do so as a matter of fairness to a treating hospital. Neither side was arguing that the 180-day appeal filing deadline was a hard-and-fast requirement, with no exceptions. That is the position that Professor Manning was chosen to put before the Court. Presumably, there will now be a three-way argument, although a division of time has not yet been made.

Manning is a former law clerk to Justice Antonin Scalia. It is the Court’s usual practice to select amicus counsel who were former law clerks to present positions not being made by the parties.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.